Alon Margalit is Research Associate, Hotung Programme for Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies (SOAS), University of London. The author wishes to thank the editors of EJIL:Talk! for their helpful comments on an earlier draft.
It has been almost six months since Osama Bin Laden was killed in Pakistan by a US commando team. It is now worth reviewing some of the legal questions arising from the incident as the heat of the moment has passed. The May 2011 killing of Bin Laden marked an operational apex in the US ‘War on Terror’ and was favourably received by the overwhelming majority of States. Shortly after the raid on a residential compound in Abbottabad was concluded, and before its exact details were disclosed, a statement by the President of the Security Council welcomed “the news on 1 May 2011 that Osama Bin Laden will never again be able to perpetrate such acts of terrorism” and urged all States to intensify their fight against terrorism in compliance with international law. UN Secretary-General Ban Ki-moon declared that “justice has been done to such a mastermind of international terrorism”.
Similar statements were made by the EU which described the American operation as “a major achievement”. Afghan President Karzai said Bin Laden “had paid for his actions”, and Saudi Arabia, the national State of Bin Laden, expressed the hope that his killing “would be a step toward supporting international efforts aimed at fighting terrorism“. In Pakistan, where the operation took place presumably without its consent, President Zardari chose to stress the “satisfaction that the source of the greatest evil of the new millennium has been silenced, and his victims given justice.”
If the question of where this operation stood in terms of international law were to be answered according to States’ responses, the killing of Bin Laden apparently did not raise any legal concerns. States hailed the American operation, did not question its legality, and thus signalled that they saw no violation of international law. Within this almost universal favourable discourse, two independent experts of the UN Human Rights Council, the Special Rapporteurs on summary executions and on human rights and counter-terrorism, issued an exceptional statement. They urged the US to disclose the facts supporting the use of deadly force against Bin Laden in order “to allow an assessment in terms of international human rights law standards”. They emphasised that “the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment”.
This statement reflected – contrary to what seemed to be the consensus shared by States – the ‘legal buzz’ among international lawyers, triggered by the American operation and concerned with its legality: was the US allowed to plan and execute a shoot-to-kill operation, or were its troops obliged to try and capture Bin Laden and give him an opportunity to surrender before turning to lethal force? A significant discussion on this question emerged immediately after the incident, debating the applicable law and whether the operation had adhered to the required standards. Different, at times opposite, views were expressed including on EJIL:Talk!, here and here.